Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Internet Law (65)
- Computer Law (62)
- Entertainment, Arts, and Sports Law (62)
- Comparative and Foreign Law (13)
- Food and Drug Law (6)
-
- Arts and Humanities (4)
- Constitutional Law (4)
- Health Law and Policy (4)
- Privacy Law (4)
- Communications Law (3)
- Administrative Law (2)
- Art and Design (2)
- Business (2)
- Commercial Law (2)
- Contracts (2)
- Criminal Law (2)
- First Amendment (2)
- International Law (2)
- Law and Economics (2)
- Medicine and Health Sciences (2)
- Science and Technology Law (2)
- Agency (1)
- Air and Space Law (1)
- Arts Management (1)
- Banking and Finance Law (1)
- Business Organizations Law (1)
- Consumer Protection Law (1)
- Cultural Heritage Law (1)
- Keyword
-
- Copyright (3)
- Artificial intelligence (2)
- Blockchain (2)
- FCC (2)
- Innovation (2)
-
- Intellectual Property (2)
- Pandemic (2)
- AI art (1)
- AI regulation (1)
- Agency (1)
- Artificial Intelligence (1)
- Authorship (1)
- Biometric data (1)
- Bitcoin (1)
- Broadcast Hoax Rule (1)
- COVID-19 (1)
- Cannabis (1)
- Child pornography (1)
- China (1)
- Clarifying Lawful Overseas Use of Data Act (1)
- Cole Memo (1)
- Commodities (1)
- Commoditizing the complements (1)
- Copyright infringement (1)
- Copyright law (1)
- Coronavirus (1)
- Cross-Border Copyright Enforcement (1)
- Crypto (1)
- Cryptocurrency (1)
- Cultural rights (1)
Articles 91 - 120 of 142
Full-Text Articles in Intellectual Property Law
Framing The Issue: Avoiding A Substantial Similarity Finding In Reproduced Visual Art, Rachael Wallace
Framing The Issue: Avoiding A Substantial Similarity Finding In Reproduced Visual Art, Rachael Wallace
Washington Journal of Law, Technology & Arts
Copyright issues are litigated in the United States every day. Yet attorneys representing visual artists settle suits more often when those suits involve the potential of a copyright infringement, partly because of the relatively few decisions on the matter. In Harney v. Sony Pictures, Inc., the First Circuit found that a copyrighted photograph could be copied to look nearly the same as the original because the copied elements were each unprotectable under the copyright. The copyright protected only those elements of the photo that were the result of the photographer’s choices in depicting the subject. The court held that …
Fixed Perspectives: The Evolving Contours Of The Fixation Requirement In Copyright Law, Evan Brown
Fixed Perspectives: The Evolving Contours Of The Fixation Requirement In Copyright Law, Evan Brown
Washington Journal of Law, Technology & Arts
To qualify for copyright protection under the current Copyright Act, a work must, inter alia, be fixed in a tangible medium of expression. This requirement is easily met when a work is embodied in a historical medium of mass expression like a printed book, photograph, or audio recording. However, when an author departs from such established media of fixation, the requirement can create a more significant barrier to copyrightability. Three decades ago, digital media provided one such challenge. Today, authors and lawyers alike are pushing the conceptual boundaries of communicative media, and this has led to some controversial recent …
Discovering The Undiscoverable: Patent Eligibility Of Dna And The Future Of Biotechnical Patent Claims Post-Myriad, Alex Boguniewicz
Discovering The Undiscoverable: Patent Eligibility Of Dna And The Future Of Biotechnical Patent Claims Post-Myriad, Alex Boguniewicz
Washington Journal of Law, Technology & Arts
In June 2013 the Supreme Court held that naturally occurring human DNA cannot be patented, but synthetically created DNA is patent-eligible. Though a major victory for patients’ rights, the holding of Association for Molecular Pathology v. Myriad Genetics appears to be the latest in a series of restrictions on patents and the human body, much to the annoyance of biotechnology companies. However, this case should not be viewed as the final word in patenting “natural phenomena.” Patent claims of genetic material are still viable when the claim details a new and useful improvement on the naturally occurring product or an …
Pacific Nortwest Perspective: The Impact Of The America Invents Act On Nonprofit Global Health Organizations, John Morgan, Veronica Sandoval
Pacific Nortwest Perspective: The Impact Of The America Invents Act On Nonprofit Global Health Organizations, John Morgan, Veronica Sandoval
Washington Journal of Law, Technology & Arts
The Leahy-Smith America Invents Act of 2011 (AIA) makes fundamental changes to the legislative landscape governing patent law in the United States and will bring about corresponding changes in the manner in which inventors and attorneys address patent issues. While the law is newly implemented, inventors in all sectors of the economy are eager to formulate reactions to it. In this Article, we explore the effects of the AIA on nonprofit research organizations dedicated to global health and life sciences. We report the perspectives of counsel representing such organizations throughout the Pacific Northwest. We also consider the patent system, and …
Aereo And Cablevision: How Courts Are Struggling To Harmonize The Public Performance Right With Online Retransmission Of Broadcast Television, Sam Méndez
Washington Journal of Law, Technology & Arts
Americans increasingly turn to the computer instead of the television to gain access to their favorite shows. With this in mind, Aereo allows its subscribers to stream broadcast television content to their computers, but does not compensate the broadcasters for these retransmissions. The broadcasters argue this violates their public performance right under the Copyright Act’s Transmit Clause, but because of Aereo’s curious technology platform, in which thousands of tiny antennas are each assigned to a unique subscriber, infringement is uncertain. The Supreme Court will soon hear American Broadcasting Companies, Inc. v. Aereo, Inc., arising out of the Second Circuit, …
Criminal Defenses To Anti-Circumvention Charges For Modifying Video Game Consoles, Peter Dang
Criminal Defenses To Anti-Circumvention Charges For Modifying Video Game Consoles, Peter Dang
Washington Journal of Law, Technology & Arts
In United States v. Crippen, Matthew Crippen was charged with modifying Xbox 360 consoles for others for a fee. His modifications allowed the consoles to run unlicensed software in violation of the anti-circumvention provision of the Digital Millennium Copyright Act (DMCA). In the first criminal trial arising from these provisions, the United States District Court for the Central District of California granted a motion in limine allowing the government to exclude evidence of fair use, holding that the DMCA provisions contained no fair use exception. After the prosecution abruptly dropped the case in December 2010, several questions remain unanswered: …
Shaking Out The "Shakedowns": Pre-Discovery Dismissal Of Copyright Infringement Cases After Comparison Of The Works At Issue, Evan Brown
Washington Journal of Law, Technology & Arts
In an era of copyright trolling, digital distribution, and widespread reappropriation of creative works, the specter of “shakedown” copyright infringement litigation looms larger than ever before. Some plaintiffs will hold the prospect of expensive and time-consuming discovery over alleged infringers to provoke settlement. In the wake of the Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, courts are more likely to consider the costs and time requirements of discovery when considering a defendant’s 12(b)(6) motion to dismiss. Several courts have recently indicated a willingness to grant motions to dismiss in copyright infringement cases when …
Trouble For Trolling: Courts Reject Copyright Trolling Tactics, Megan R. Haslach
Trouble For Trolling: Courts Reject Copyright Trolling Tactics, Megan R. Haslach
Washington Journal of Law, Technology & Arts
Copyright trolling has become a popular, but widely criticized tactic used by copyright holders to defend their intellectual property rights. One method involves rights holders selling their rights to infringed works to holding companies, as those companies may more easily file hundreds of suits against potential infringers at once. Another method involves rights holders themselves filing mass lawsuits against hundreds of BitTorrent users at once using their anonymous IP addresses, threatening to name the alleged infringers in a lawsuit if a settlement is not paid. However, in many recent cases, courts have shut down such tactics by invoking procedural deficiencies …
Prometheus V. Mayo: Limited Implications For § 101 Jurisprudence, Jessica Belle
Prometheus V. Mayo: Limited Implications For § 101 Jurisprudence, Jessica Belle
Washington Journal of Law, Technology & Arts
The United States Supreme Court recently confirmed the importance of the patent eligible subject matter inquiry under 35 U.S.C. § 101 when assessing whether a claimed invention (“claim”) is patentable in Mayo Collaborative Services v. Prometheus Laboratories, Inc. The Court also stressed that patents will not be issued to a claim that simply recites a law of nature unless there are additional steps that ensure the claim is sufficiently tailored to not preempt further use of the natural law. The Court’s decision shocked the patent law community. However, decisions by lower courts since have demonstrated that Prometheus has not …
Update Needed? Digital Downloaders And The Innocent Infringer Defense, Colin Conerton
Update Needed? Digital Downloaders And The Innocent Infringer Defense, Colin Conerton
Washington Journal of Law, Technology & Arts
Over the past decade, the music industry has suffered unprecedented piracy and digital music has become increasingly prevalent on illegal websites. In response, the Recording Industry Association of America (RIAA) has filed lawsuits against many alleged copyright infringers who have illegally downloaded music from the Internet. A few of these alleged infringers, in an effort to reduce damages, claimed they were “innocent infringers.” Several courts ruled that the innocent infringer defense did not apply, based on 17 U.S.C. § 402(d), which precludes the defense if proper copyright notice appears on “phonorecords” (e.g., compact discs). The Supreme Court denied certiorari in …
Bidding On Trademarked Keywords In Search Engines: A Trademark Law Update, Ryan Baker
Bidding On Trademarked Keywords In Search Engines: A Trademark Law Update, Ryan Baker
Washington Journal of Law, Technology & Arts
In March 2011, the Ninth Circuit modified the list of the most relevant factors for courts to consider when evaluating whether a business’s keyword bid on a competitor’s trademark causes a likelihood of confusion under the Lanham Act. Over ten years earlier, in Brookfield Communications v. West Coast Entertainment, the Ninth Circuit had held that using a competitor’s trademark in a website metatag for the purpose of achieving a more prominent place in search results creates “initial interest confusion” for consumers in violation of the Lanham Act. The Brookfield opinion formed what became known as the “Internet troika” test: …
Unchanging E-Discovery In The Patent Courts, Daniel B. Garrie, Yoav M. Griver
Unchanging E-Discovery In The Patent Courts, Daniel B. Garrie, Yoav M. Griver
Washington Journal of Law, Technology & Arts
This Article analyzes the Federal Circuit’s Model Order Regarding E-Discovery in Patent Cases (the “Model Order”). The Article briefly describes the purpose behind the Model Order, describes its key provisions, analyzes the Model Order to identify some areas of continuing concern, and defines predictive coding to examine the impact, or lack thereof, on the Model Order. The Author concludes that, while it is beyond refute that the Model Order is an appropriate step toward controlling and managing e-discovery, the Model Order is only the first step. In this regard, several problems, as set forth below, can potentially arise when counsel …
Personalized Medicine, Genetic Exceptionalism, And The Rule Of Law: An Analysis Of The Prevailing Justification For Invalidating Brca1/2 Patents In Association Of Molecular Pathology V. Uspto, Kristen L. Burge
Washington Journal of Law, Technology & Arts
As medicine advances toward a more personalized model, the significance of genetic information is growing exponentially. While unlocking the genetic code has advanced the state of medicine, it has also reinvigorated the debate over the boundaries of patentable subject matter. The potential clash between having access to state-of-the-art medicine and protecting intellectual property investments came to a head in the case, Association of Molecular Pathology v. USPTO (“Myriad”). This Article analyzes the legal opinion rendered by the district court through the unique lens of genetic exceptionalism—a concept previously reserved to social science and public policy. Then, this Article …
Finding Safe Harbor: Navigating Washington's New Unfair Competition Law, Daniel Shickich
Finding Safe Harbor: Navigating Washington's New Unfair Competition Law, Daniel Shickich
Washington Journal of Law, Technology & Arts
Under a new law, manufacturers and retailers that sell products in Washington State could face stiff penalties if their products are made using stolen or misappropriated information technology (“stolen IT”). In 2011 the Washington Legislature passed Substitute House Bill 1495, creating a new cause of action that allows private plaintiffs or the state attorney general to seek injunctive relief and damages against manufacturers that use stolen IT in their business operations. The law also creates an additional claim for actual damages of up to $250,000 against third parties who contract with violating manufacturers and sell the products in Washington. Using …
Who Are You? Difficulties In Obtaining Trademark Protection For Domain Names, Luke M. Rona
Who Are You? Difficulties In Obtaining Trademark Protection For Domain Names, Luke M. Rona
Washington Journal of Law, Technology & Arts
Three appellate decisions illustrate the difficulty of acquiring trademark protection for domain names that include a top-level domain (“TLD”), such as “.com.” Courts have characterized these marks as generic or merely descriptive, which carries implications for the party seeking registration: generic marks cannot be protected, while descriptive marks can, assuming they possess a secondary meaning that makes the mark distinctive. Generic and descriptive domain names often indicate the services a company provides, with the addition of the “.com” TLD to indicate online services. One key test of genericness is whether the public identifies the mark with a service generally or …
Chief Judge Rader's Contribution To Comparative Patent Law, Toshiko Takenaka
Chief Judge Rader's Contribution To Comparative Patent Law, Toshiko Takenaka
Washington Journal of Law, Technology & Arts
Chief Judge Rader influences patent jurisprudence in other nations through his interaction with judges and lawyers from these jurisdictions. He also uses the comparative method to gain insights from experiences in these jurisdictions to improve U.S. patent jurisprudence. This Article discusses opinions authored by Chief Judge Rader from the comparative law perspective. It discusses his influence on European and Japanese patent jurisprudence in the three areas: the (I) patent eligibility, (II) nonobviousness, and (III) enablement-written description requirements. Judge Rader likewise used his knowledge of foreign jurisprudence to interpret U.S. patent statutes and to develop doctrines in these areas.
Celebrating Contributions Of Chief Judge Rader To Patent Infringement Jurisprudence, Katherine E. White
Celebrating Contributions Of Chief Judge Rader To Patent Infringement Jurisprudence, Katherine E. White
Washington Journal of Law, Technology & Arts
Chief Judge Rader’s judicial opinions contribute significantly to patent infringement jurisprudence. He writes from a teacher’s perspective, providing context and a clear lens through which legal issues may be examined. His deep reverence for the rule of law pervades his opinions, as he injects a cadre of principles governing his approach. Each opinion builds a foundation made of consistency and clarity in upholding the fundamental purposes underlying the patent grant.
Efforts To Establish Clear Standards For Exhaustion In Japan, Kaoru Kuroda, Eiji Katayama
Efforts To Establish Clear Standards For Exhaustion In Japan, Kaoru Kuroda, Eiji Katayama
Washington Journal of Law, Technology & Arts
The Honorable Chief Judge Rader has often emphasized the importance of establishing clear standards in the field of patent law. Similarly, Japanese courts in this field seem to make an effort to present a clear rule in their holdings. Patent exhaustion theory is one of the fields where a clear and concrete standard by the courts is especially needed. This Article explains several clear standards held by Japanese courts regarding this issue. It then discusses a problem raised by establishing clear standards by courts in a civil law country like Japan and also presents the Japanese Government’s efforts to ensure …
Fostering The Business Of Innovation: The Untold Story Of Bowers V. Baystate Technologies, Robert W. Gomulkiewicz
Fostering The Business Of Innovation: The Untold Story Of Bowers V. Baystate Technologies, Robert W. Gomulkiewicz
Washington Journal of Law, Technology & Arts
Perhaps the law review literature does not need another article on the Federal Circuit’s Bowers v. Baystate Technologies case. That case has received more than its share of attention from commentators, all criticizing Judge Rader’s majority opinion and most extolling the virtues of Judge Dyk’s dissent. Despite the storm of scholarly criticism, however, courts have followed Judge Rader’s opinion. This Article tells the untold story of why courts have been wise to do so. The Article explains how commentators have argued that federal intellectual property law should have preempted Bowers’ claims for breach of a shrinkwrap license prohibition on reverse …
Influencing The Evolving Ip System And Law Of China Through International Outreach, Esther H. Lim
Influencing The Evolving Ip System And Law Of China Through International Outreach, Esther H. Lim
Washington Journal of Law, Technology & Arts
No individual U.S. judge has influenced the evolving IP system and law of China through international outreach more than Chief Judge Rader of the Federal Circuit. Through tireless efforts, he has made an indelible footprint in the history of Chinese IP law as a judge, a professor, and an author. Chief Judge Rader has garnered rock-star status in China through dedication and commitment to contribute to, and to be a part of, China’s IP system and law. He has secured a legendary standing and will be long remembered by the Chinese IP community as an ambassador of IP and judicial …
Tuning The Obviousness Inquiry After Ksr, Mark D. Janis
Tuning The Obviousness Inquiry After Ksr, Mark D. Janis
Washington Journal of Law, Technology & Arts
One of the most important and delicate judicial tasks in patent law is to keep the obviousness doctrine in reasonable working order. There are several reasons why the obviousness doctrine has been the subject of frequent judicial tinkering. First, patentability doctrines interact with each other, so doctrinal alterations that seem to be entirely external to the obviousness doctrine frequently have ripple effects on obviousness. The interaction between the utility and obviousness doctrines provides one good example. Second, the obviousness doctrine is internally complex. Cases in the chemical and biotechnology areas over the past several decades have amply illustrated this point. …
Patent Law's Falstaff: Inequitable Conduct, The Federal Circuit, And Therasense, John M. Golden
Patent Law's Falstaff: Inequitable Conduct, The Federal Circuit, And Therasense, John M. Golden
Washington Journal of Law, Technology & Arts
For decades, the relationship between the U.S. Court of Appeals for the Federal Circuit and patent law’s doctrine of inequitable conduct has resembled that between Shakespeare’s Prince Hal and John Falstaff. The former recognizes the excess, the deservedly ill repute, even the at least occasional wickedness of the latter, but cannot tear away from his close companion. Likewise, for decades, Federal Circuit judges have criticized the excesses of the defense of inequitable conduct, which can render a patent unenforceable as a result of misrepresentation or nondisclosure to the U.S. Patent and Trademark Office. Nevertheless, U.S. patent law remains wedded to …
Chief Judge Rader's Material Contribution To Geographic Indicator Analysis, Signe H. Naeve
Chief Judge Rader's Material Contribution To Geographic Indicator Analysis, Signe H. Naeve
Washington Journal of Law, Technology & Arts
Geographic indicators—trademarks that use a place name to indicate goods or services—are now theoretically easier to register, even if the good or service does not actually come from that place. This shift is a result of three cases, two authored by Chief Judge Randall R. Rader of the Federal Circuit Court of Appeals (California Innovations and Les Halles), and one where he served on the panel (Spirits International). These cases made it more difficult for a trademark examiner to reject an application for a primarily geographically deceptively misdescriptive mark by adding a materiality requirement. However, raising the bar was not …
Cheaper Watches And Copyright Law: Navigating "Gray Markets" After The Supreme Court's Split In Costco V. Omega, S.A., Parker A. Howell
Cheaper Watches And Copyright Law: Navigating "Gray Markets" After The Supreme Court's Split In Costco V. Omega, S.A., Parker A. Howell
Washington Journal of Law, Technology & Arts
Some manufacturers seek to prevent unauthorized importation and sale of their foreign-made products, called “gray market” goods or “parallel imports,” through copyright law. U.S. copyright law prohibits importation of copyrighted works without the copyright owner’s permission. At least one manufacturer, Omega, sought to extend this protection to its watches, a useful product, by affixing copyrighted logos. In Costco v. Omega, S.A., Omega claimed Costco violated its distribution right by selling the watches in the U.S., while Costco contended that a first sale abroad had extinguished Omega’s rights. The case reached the U.S. Supreme Court, which affirmed by an evenly …
Loaded Question: Examining Loadable Kernel Modules Under The General Public License V2, Curt Blake, Joseph Probst
Loaded Question: Examining Loadable Kernel Modules Under The General Public License V2, Curt Blake, Joseph Probst
Washington Journal of Law, Technology & Arts
This Article examines the intersection of Linux loadable kernel modules and the license under which Linux is distributed, the General Public License (GPL) Version 2. Section I of this Article discusses ambiguous terms contained within the GPL and various interpretations of these ambiguities. Next, Section II analyzes the changing scope of legal protection for computer software, particularly as it pertains to derivative works and as applied to loadable kernel modules. Section III highlights provisions contained within the GPL that may attempt to reach beyond a traditional works analysis and examines these provisions in light of recent developments at the intersection …
End User Liability For Sofware Developed With Trade Secrets, Jeff Patterson
End User Liability For Sofware Developed With Trade Secrets, Jeff Patterson
Washington Journal of Law, Technology & Arts
The National Conference of Commissioners on Uniform State Laws (NCCUSL) developed the Uniform Trade Secrets Act (UTSA) to unify the laws regulating the improper use of secret, economically advantageous information. However, consumers often procure software and other products without knowledge of any trade secrets used in the production of the products. Some companies have sought remedies against end users of products developed using trade secrets. But in Silvaco Data Systems v. Intel Corp., a California appeals court considering this issue in the software context held that execution of compiled object code, which is not easily interpreted by humans, is …
Cross-Border Contributory Patent Infringement In Germany, Heinz Goddar
Cross-Border Contributory Patent Infringement In Germany, Heinz Goddar
Washington Journal of Law, Technology & Arts
This Article examines recent German court decisions analyzing Section 10 of the German Patent Act (“PatG”), which governs cases of contributory patent infringement, focusing in particular on the implications of recent decisions on potential cross-border infringement. The Article offers recommendations on how judicial scrutiny of contributory infringement in Germany may be streamlined in light of potential evidentiary problems and concludes with a case study of how German courts might analyze a situation like that faced by the United States Court of Appeals for the Federal Circuit in AT&T v. Microsoft.
Copyright Infringement Liability Of Placeshifting Services In The United States And Japan, Naoya Isoda
Copyright Infringement Liability Of Placeshifting Services In The United States And Japan, Naoya Isoda
Washington Journal of Law, Technology & Arts
Placeshifting is a convenient service that enables customers to enjoy television programs from their home countries even if they are in foreign countries. Placeshifting works by receiving/recording a television program in one country and then transmitting the digital data to customers everywhere in the world via the Internet upon each customer’s request. Because placeshifting may be involved with recording and/or transmitting copyrighted content, service providers must face the question whether they may be liable for copyright infringement. In the United States, the Second Circuit in Cartoon Network v. CSC Holdings decided the legality of placeshifting by requiring a “volition element” …
A Matter Of Access: How Bypassing Drm Does Not Always Violate The Dmca, Alicia Hoffer
A Matter Of Access: How Bypassing Drm Does Not Always Violate The Dmca, Alicia Hoffer
Washington Journal of Law, Technology & Arts
In the last decade, several federal circuit courts have applied the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA) to determine what forms of unauthorized access to copyrighted work are prohibited. Courts have considered Digital Rights Management (DRM) disputes concerning access to both copyrighted digital-media and manufactured products. The Second and Ninth Circuits have applied the DMCA in digital media cases to protect the owners of digital copyrighted works. The Fifth, Sixth, and Federal Circuits have applied the DMCA in manufactured-product cases, holding that bypassing DRM controls does not violate the DMCA under certain circumstances. These differing conclusions stem …
A Survey Of The Dmca's Copyright Management Information Protections: The Dmca's Cmi Landscape After All Headline News And Mcclatchey, Susuk Lim
Washington Journal of Law, Technology & Arts
Copyright management information (CMI), defined by the Digital Millennium Copyright Act (DMCA), is information conveyed with a copyrighted work that identifies the owner and nature of that copyright. Although the DMCA prohibits the knowing removal of CMI under 17 U.S.C. § 1202(b), district court decisions relating to CMI are split on whether its provisions apply only to digital forms or also extend to non-digital CMI conveyance. This Article describes the current state of CMI jurisprudence and the expected effects of possible interpretive outcomes.